Child and Spousal Support: Everything You Need to Know
Child support and alimony are the only debts that never go away. They can’t be discharged in bankruptcy, and are nearly impossible to adjust without a court appearance.
If circumstances arise which cause you to believe that your child support payments should be adjusted, you can try to negotiate with your child’s other parent. If he or she agrees to an adjustment, get it in writing and obtain the court’s approval. If negotiation doesn’t work, you must go to court to request a modification. You have the opportunity to state your case and you must document the reasons for modification. This can be complicated and you will probably need to make use of a lawyer or legal typing service.
Until the court determines that the modification is appropriate, you are responsible for the monthly payments as ordered. The modification, if granted, is not retroactive. There are a few circumstances in which a judge will determine an adjustment in child support payments acceptable.
If you have suffered an involuntary decrease in income, or, if the decrease is voluntary but for the ultimate benefit of the child, you may be eligible for a modification. For example, if you took a cut in work hours so you could complete your education and increase your earning potential, you may be able to reduce your payments temporarily.
Increased Income of Custodial Parent
You may be able to modify your payments if your child’s custodial parent has had a substantial increase in income. A career change may affect his or her income sufficiently to lower your payment.
If your expenses have dramatically increased, you may be eligible for a modification of your support. This must be within reason, however. The expense of a new baby may be considered, while that of a new boat probably will not.
The Needs of the Child Have Decreased
If your child’s expenses are less than they once were, your payments may be lowered. For example, your children now may be attending public school when once they attended private school. Usually, though, children’s expenses increase, not decrease, with age.
The Child Spends More Time in Your Custody Than Previously Planned
The more time the child spends with you, the more of their basic living expenses you will pay for on a day-to-day basis. If your original agreement was that the child would spend weekends with you, but in fact spends half the month in your custody, you may be granted a modification. If you reduce or eliminate your payments without approval from the court, the payment arrearage can accumulate quickly.
If your payments aren’t already deducted from your wages, automatic wage withholding for your support may be required. The courts frown upon non-payment of child support and have very aggressive collection techniques, such as:
- Wage garnishment – Up to 50% of your net (gross minus mandatory deductions) pay can be garnished to pay your support arrearage. If, however, you already have your support withheld from your pay, that amount would be included in the 50%. You can request a hearing if the amount of the arrears is incorrect, if you had custody of the child at the time of the arrears or if the garnishment will leave you too little to live on.
- Tax intercept – Your state or federal tax return can be taken and applied toward your child support arrears. If you are married and you file jointly, your spouse will lose his or her portion of the return as well. He or she can, however, file an injured spouse claim with the IRS to get his or her portion back.
- Credit damage – If the arrearages is greater than $1,000, it will be reported to the credit bureaus. Some agencies report delinquent payments no matter what the amount. You are informed beforehand and have an opportunity to dispute the amount. The information typically is not removed when the back payments are caught up, but will show that the balance is now zero.
- Property liens – If you own property, a lien may be placed on it for back payments. It will be paid when you sell. It is possible, however, for the court to force a sale of your property to get the money immediately.
- Public humiliation – Many counties publish in the newspaper lists of parents who are delinquent on their child support. Some even use television to name parents with arrears.
- Contempt of court – Because you are denying a court order by not paying child support, you may be held in contempt.
- Criminal prosecution – It is a misdemeanor in most states to not pay child support. Although it is rare, you may be prosecuted.
Spousal support, commonly called alimony, is money paid from one ex-spouse to another, after dissolution of the marriage. To determine the amount of support required, most judges take into account a variety of factors such as the earnings and obligations of each ex-spouse, and their age and health. The standard of living and length of the marriage is considered, as are the tax consequences of the support to each. The judge may also consider the time needed until the supported spouse is in a position to support him or herself.
In order for you to adjust your spousal support, you must make a motion for modification with the court. Usually the modification will be granted only if there has been a material change of circumstances. In some states that may include remarriage or cohabitation of the supported spouse. Also, if your ex-spouse has had an increase in income, your payments may be reduced.
An involuntary decrease in your income may cause your payments to be reduced, but if the decrease is voluntary, the court might consider your ability to earn, not your actual earnings when making its determination. As with child support, the modification must be approved before you can reduce your payments, and the modification is not retroactive. If you are paying spousal support only, any arrears can be collected through use of tax intercepts, court hearings, garnishments, and liens. If it is combined with child support, the back payments can be collected in the same ways as child support.
Revised January 2016.